From Hornsby to Blacktown solicitors have been hauled in for birching by the disciplinary stipes … Forging a fee agreement and filching money for a trial that did not proceed … When a solicitor thought he could charge a commission before asking an estate’s beneficiaries … Fame & Character … Misery & Woe
For good measure Basten, Macfarlan and Ward JJA detached him from the jam roll.
The story is that Kinchington had a client on criminal charges with a hearing set down for May 16, 2011. A costs retainer was signed in September 2010 at a time when the client intended to plead not guilty.
Less than three months later there was an further amended agreement dated May 5, 2011, but with an inference that it may have been prepared later. It contained this provision:
“We have reserved the days of 10 May 2011 to 27 May 2011 as an allocated period … we will charge our daily rate for those ten (10) days set down for trial in any case.”
By mid-April 2011 the client and his partner had deposited $86,919 into Kinchington’s trust account.
However, on on the day the trial was scheduled to commence a plea of guilty was negotiated and the case adjourned to July 15, 2011 for sentence.
Kinchington withdrew funds from his trust account, including professional fees totalling $15,232 for the period May 10-27, 2011, “in accordance with the further amended retainer agreement”.
The unnamed client’s partner alleged to the Office of the Legal Services Commissioner that Kinchington had engaged in overcharging, had refused to refund the money, had provided inferior service, and had been deliberately misleading.
The solicitor had not obtained the client’s agreement to the further amended retainer but had cut and pasted his signature from the earlier agreement and inserted it on the further amended agreement dated May 5.
Kinchington maintained that the client had signed the latest retainer, but that he was unable to provide a copy of the original because the firm did not have “the space to keep all original documents”.
He also told the Legal Services Commissioner that the original documents had not been kept as “they are disposed and shredded after scanning”.
The LSC said, “Mr Kinchington fraudulently doctored a costs agreement to provide authority to charge for aborted trial dates and to transfer the balance of moneys held in trust”.
The Law Society obtained a preliminary advice from a document examiner, Ms Moussa, who confirmed that the signature on the further amended agreement was a “copy and paste” image of the signature on the earlier agreement. She concluded that the two documents could not both be genuine.
The police did a forensic examination and confirmed Ms Moussa’s finding – “namely that as between the second and third documents, ‘the total lack of natural variation … means that the signature stems from a single act of writing’.”
Kinchington said the May 6 agreement was signed by the client on his lap while sitting on a chair, however there was no evidence that the further amended agreement was provided to the client.
On August 26, 2014 the solicitor was charged with using a false document to obtain a financial advantage under s.254(b) of the Crimes Act NSW, but failed to notify the Law Society that he had been charged with a “serious offence”.
Later the charge was varied to allege a separate offence under s.192G(b) of the Crimes Act – publishing a false and misleading statement with the intention of obtaining a financial advantage. It carried a lesser penalty of five years imprisonment.
The reason for the change was that the prosecution could not identify a date on which the false agreement had been prepared.
On October 12, 2015 Kinchington pleaded guilty and tendered a cheque for $15,232 – the amount identified as the financial advantage.
He was convicted and sentenced to 12 months, wholly suspected on condition of good behaviour for 12 months.
Kinchington’s counsel at the sentencing said:
“What has happened here is that in order to head off what might have been perceived as an unwarranted complaint, an expedient … but fundamentally dishonest course was taken of doing a copy and paste of a signature in order to head off any argument about it.”
The Law Society submitted that he is not fit and proper because of the false costs agreement; charging fees for the entire trial period, including days when he was not in court or doing preparatory work; making false and misleading statements to the LSC and the LS; the plea and conviction for the offence under the Crimes Act; and the failure to disclose the original charge.
The Prothonotary v Leon Nikolaidis of fond memory comes flooding back – the case of the backdated a document with the intention of justifying costs to which the solicitor was not entitled. Leon was awarded two years imprisonment with a one year non-parole period.
The Court of Appeal said Kinchington’s conduct “is indicative of a lack of that good fame and character which is a necessary precondition to the practice of law”.
” … reformation of character over a period of time may occur, but should not be assumed. In the present case, the court cannot make an assumption of reformation.”
Poor Christopher John Haseldine, with his own law shop in Bankstown, got clobbered with a finding of professional misconduct after well nigh 50 years as a solicitor.
In 2010 he drafted and executed a will for Niobe Rideout Belletty. She died in March 2012 and Haseldine became the executor of her estate which was valued at $1,184,189.74.
He made various transfers for costs and disbursements from the estate’s trust account to his general account:
On Oct 31, 2013 he transferred $11,000.00 – described as “executor’s commission”.
There were 26 beneficiaries with the residue to be divided between 21 non-charitable beneficiaries.
Clause 10 of the will said:
“I direct that should the said Christopher John Haseldine act as executor of this my Will he shall be entitled to act in his capacity as solicitor and to be entitled to charge for acting in that capacity and he shall also be entitled to charge commission for acting in his capacity as executor for services or attendances for which a charge in his capacity as solicitor would not be appropriate and he shall be entitled to charge for acting in his capacity as solicitor at a fair and reasonable rate.”
The testatrix also received independent legal advice from two other Bankstown solicitors, Allan Stockman and Linden Evans.
After the Law Society did a trust account inspection Haseldine, after the event, sought consent from the beneficiaries to take the $11,000 commission. He undertook to repay the money if he didn’t get the consents.
Nineteen of the 20 remaining beneficiaries gave a “positive” response to his request.
The Law Society’s beef was that he didn’t obtain prior authority to trouser the $11,000 commission from the trust account, not did he file and pass accounts or make an application to the court for payment of the commission, pursuant to the Probate and Administration Act.
NCAT rejected the proposition that clause 10 of the will permitted him to charge the commission because “the commission is expressly limited to services or attendances for which a charge in his capacity as a solicitor would not be appropriate”.
The tribunal also found that not all beneficiaries consented retrospectively to the commission and in any event the consent relating to the calculation of the amount was not informed.
The tribunal went onto find that the solicitor had breached his fiduciary duty, however, it did not think that Haseldine has misappropriated the estate’s money.
“We are not satisfied on the evidence that Mr Haseldine’s view as to the scope of his authority under clause 10 was dishonest or so unreasonable as to amount to dishonesty.”
The ground of misappropriation was not make out.
“We are satisfied that the established conduct justifies a finding that Mr Haseldine is not a fit and proper person to engage in legal practice within the meaning of s.497(1)(b) [LPA] and is guilty of professional misconduct and we find so.”
He has to come back with submissions on penalty. A sad business after 50 years in the trade.